UK: Annual Review: Round Up Of The Key Legal Decisions And Regulatory Changes Over The Past 12 Months

The Fenwick Elliott Annual Review, (please
click here to read), contains a number of articles and features designed to help, keep you informed about the latest legal decisions and regulatory changes so as to enable you to avoid costly delays and disputes.

For example, the Review includes summaries of the key cases from the past 12 months, taken from the Dispatch and the Construction Industry Law Letter. Amongst other things, these cases demonstrate the continuing importance of mediation and other forms of ADR. The revisions to the Pre-Action Protocol for Construction & Engineering Disputes, which came into force at the beginning of April, provide further confirmation of this. On page 16, we summarise these changes and consider the penalties imposed for failing to take heed of the new regime.

Dispute avoidance is a key driver and we are continually looking for innovative ways to reduce disputes to a minimum. Fenwick Elliott was pleased to have been part of the TCC Mediation Survey. The interim report on the results of that survey, to be found at page 20, provides interesting reading, if perhaps slightly unexpected results. Mediation and ADR are increasingly not just limited to the domestic market. For example, the Project Mediation scheme, which we have developed in conjunction with CEDR, provides a new method of managing the risk of disputes from the delivery stage of a project both at home and abroad. See page 22 for further details.

With this in mind, the Review also features an article on page 24 about the "early warning system" to be found in the NEC3 contract. Whilst the NEC3 may be the contract that is favoured by the Olympic Delivery Authority, we also take a detailed look on page 27 at one of its main rivals, the JCT Major Projects Form. We also examine the different ways in which force majeure is treated under the common law and civil codes in the new FIDIC Red Book 1999 Edition.

The Review also takes a look at the latest government legislation, both proposed and actual. The reforms of the CDM Regulations, see page 13, which came into force in April, are designed to reduce the administrative burden on all parties. However, they also significantly increase the responsibilities on employers. Perhaps more surprisingly, the Corporate Manslaughter and Corporate Homicide Bill finally received parliamentary approval in July. On page 10, we summarise what you need to know.

Equally surprisingly, some three years after our Review first mentioned the possibility, the government has finally revealed its intentions for the reform of the Housing Grants Act. However, it has not said when these proposals might become law. Meanwhile adjudication remains a fast changing area of law and Fenwick Elliott, as we describe on page 7, has been closely involved in the latest legal challenges involving the implications of late decisions. In the courts, Judge Coulson had commented that "resourceful losing parties" are now trying to overturn adjudicators’ decisions on the grounds they were late. We made sure in the Cubitt v Fleetglade case that such a challenge comprehensively failed.

We were also involved in acting for the successful party in what is, for the construction industry, likely to be the most important decision to come out of the construction of Wembley Stadium. We persuaded the TCC in the Multiplex v Honeywell case,which we summarise on page 49, that the Australian case of Gaymark Investments v Walter Construction does not represent the law of England and that contract terms requesting a contractor to give prompt notice of delay serve a valuable purpose. Mr Justice Jackson made it clear that the courts will seek to uphold extension of time clauses whenever possible.

Finally, who would have thought that a case involving Russian charter-party contracts would tackle the question of what the words "arising out of a contract" would mean? Understandably the headlines focused on the Court of Appeal’s recognition that it was time for the courts to take a more liberal approach in international arbitration cases to the construction of jurisdiction and arbitration clauses. However, within the judgment, as our summary on page 34 reveals, can be found clarification which is equally applicable to construction contracts.

It is well established that a landlord can oppose renewal of a business lease if he demonstrates settled intention to demolish, reconstruct or carry out substantial construction works to the premises or a substantial part ...

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